Before each season, college athletes are required to sign a seven-page document that, among other things, affirms their status as amateurs; gives permission to the NCAA, and other third parties acting on its behalf, to use an athlete’s image or likeness in promotion of NCAA sanctioned events; and prohibits student-athletes from using their own image for any commercial purposes. This prevents, for example, college athletes appearing in Gatorade, or Nike commercials, while allowing the NCAA to contract with corporations like Entertainment Arts to create videogames using athletes’ likenesses that make millions of dollars annually. What the NCAA has effectively created is a perpetual ownership of an athlete’s images. A student cannot participate in a sport unless they sign this document, and once signed the athlete has lost control of his or her image as well as any monetary value it might have in the market.
The required signing of this form raises a strong ethical concern over the exploitation of student athletes, as well as concerns over issues of fairness in trade and free market competition. To provide an athlete’s image to corporations like EA sports for commercial purposes, and not allow for direct compensation to the athlete, is an unfair treatment of the individual, and does a harm economically to society as well. These harms to society and to the individual are the key focal points of a current lawsuit being brought against the NCAA for its use of college athletes’ images by former UCLA basketball star Ed O’Bannon, as well as other athletes like former Arizona State and Nebraska quarterback Sam Keller, and former NBA star Oscar Robertson.
The social harm created by this form lies in restraining student athletes’ ability to go out and market themselves commercially. Theoretically, if athletes were allowed to go out and negotiate their own licensing deals, more companies would be able to compete for those licenses, thus creating a competitive marketplace which lowers cost, and increases quality, ultimately benefiting consumers. The NCAA’s current method eliminates this competition, which undermines the success of the free market system by not allowing for the best product – videogames, apparel, posters, etc. -- to be made available to the consumer.
The more specific harm is done to the athlete whose images are used for these commercial purposes, and who sees no direct compensation for this use. Imagine if a company like Apple sold a product and did not compensate the people who made the product. . They refused to pay the iPod engineers, or those responsible for its aesthetic design. This would be a clear violation of ethical and legal principles. Yet, the same line of reasoning is not being applied in the case of college athletes and their images.
A large reason why videogames like NCAA March Madness, or NCAA Football are so popular is because of the ability of fans to vicariously assume the identity of their favorite athletes through playing the game. If it were just about identifying with a particular school, then these gaming companies wouldn’t go to such great lengths to create such obvious and detailed digital renderings of these players. So, because the players themselves are partially responsible for the success of the game, they should be entitled to a share of the revenue profits that it generates. They are just like any other popular social figure who has the ability to leverage his or her popularity for financial gain, and the equal protection of our Constitution should require that these individuals not be discriminated against simply because they are college athletes.
There is a concern over what this might do to the integrity of college sports. Athlete’s will become so consumed with making money, and it will further the vices of greed and vanity that are systemic within professional sports, and slowly creeping into the college game as well. Although these concerns are of strong moral weight, denying someone their liberty and freedom to do with their body what they chose, so long as it doesn’t cause harm, is a greater ethical violation. The NCAA is deciding how a person lives their lives. While we may hope that individuals within society grow to be people of strong moral character, there are limits to how far we can go in helping to develop that character. The effective way to build virtue is to be an example of virtue for others, not to dictate their choices for them.
My status as a college athlete should have no effect on what I do outside of the academic setting, because imposing such controls outside the academic setting is a huge infringement upon my liberty as an individual person. If an attractive college student goes to a modeling agency and appears in a catalogue, no one cries foul. Similarly, if a student athlete has the ability to go out and convince a company that they are a marketable person, then they should have the freedom to do so.